Wednesday, 11 February 2015

Whether widow is exempted from payment of court fees for receiving succession certificate?

 In view of the aforesaid, this case is wholly distinguishable
from the case of Bipin Shah. Consequently merely because the
Petitioner is the widow or child of the deceased the Petitioner would
not be entitled to any remission, exemption or waiver of the Court fee
statutorily required to be payable U/s.379 of the ISA for securities or
other debts of the deceased.
 The Petitioner shall, therefore, pay requisite Court fee after
which the Petition shall proceed.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY PETITION (L.) NO.455 OF 2011

Shehala Pramod Desai  Vs Nil

Dated : 25th June,2012
CORAM : MRS. ROSHAN DALVI, J.
Citation:AIR 2012 Bom 168,2013(1) ALLMR 253,

1. The aspect which the court is called upon to consider is
whether the Petitioner Snehala Pramod Desai, who is the widow of
the deceased, is liable to pay ad valorem court fee upon the securities
shown in the petition which are sought to be transferred to the names
of the Petitioner as also the other heirs under the Succession
Certificate applied for by the Petitioner.
2. The Petitioner is the widow of the deceased who is one of
the heirs alongwith her two married daughters. Counsel on behalf of
the Petitioner stated that only the Petitioner has applied for
waiver/exemption of court fee on the ground that she is a woman and
that the securities will be used for her maintenance.
3. The Petition has been filed simplicitor for issue of
succession certificate in respect of the securities left by the deceased
husband of the Petitioner. The Petitioner has not stated or
substantiated that the Petitioner, as the widow, is not able to
otherwise maintain herself.
4. It is settled position in law that a woman is entitled to
waiver/exemption of court fee only in respect of applications for
maintenance in matrimonial disputes or with regard to divorce and

family law matters and not for property disputes.
5. The securities mentioned in the petition is the moveable
property left by the deceased. There is no dispute with regard to that
property. The Petitioner, as also her two married daughters, are
entitled to an equal share in the estate of the deceased. The Petitioner
would be entitled to the securities upon the death of the deceased and
upon administration of his estate.
6. Since the Petition is in respect of only the securities, the
Petitioner has not applied for Probate or Letters of Administration of
the deceased but only for the issue of Succession Certificate U/s. 370
of the Indian Succession Act. Upon the certificate being issued in the
form specified in the schedule VIII, the Petitioner would be
empowered to receive interest and dividends thereon U/s.374 (a) of
the Indian Succession Act (ISA). The Petitioner would, therefore, be
liable to deposit the sum equal to fee payable under the court fees act
1870 (and later Bombay Court Fees Act, 1957) as applicable U/s.379
(1) of the ISA. The fact of the succession certificate being issued
would be conclusive against the companies in which the deceased
held the share and securities U/s.381 of the ISA. Any party aggrieved
by the issue of the certificate would be entitled to apply for revocation
of the certificate U/s.383 of the ISA. The order passed herein would
be liable to appeal U/s.384 of the ISA.
7. It is upon the aforesaid provisions of law that the Petition
has been filed.
8. It is settled position in law (See Judgment in
Testamentary Petition (L.) No.118 of 2007 of Bombay High Court
in Girish Kanaiyalal Munshi Vs. Sudha Girish Munshi & Anr.) that
property disputes relating to the grant of probate or Letters of

Administration are not exempted from the payment of Court fees even
if they are filed by female litigants.
9. The aforesaid provisions show that the petition for issue of
succession certificate is no different from the provisions under which
the probate or Letters of Administration are granted. A reading of the
aforesaid provisions makes this position clear. The Petition for
Succession Certificate may be filed only because the probate or Letter
of Administration would not be applied for since it is not in respect of
immoveable property left by the deceased. The Petitioner is liable to
pay court fees in such petition also. An application is to be similarly
made showing similar particulars in the prescribed format. The fact
of the certificate being issued is similar to the provision of the Probate
or Letters of Administration with regard to the third party concerned
with the estate of the deceased. The revocation of the certificate is
also upon similar grounds and an appeal is provided from the order
passed in such petition.
10.. There is, therefore, no reason why a petition for grant of
succession certificate should be treated differently from a petition for
grant of Letters of administration or Probate, merely because it relates
to moveable property of the deceased unlike the other petitions
dealing with the immoveable properties also.
11. However, my attention has been drawn to the judgments
of Single Judges of this Court with regard to waiver of the Court fee
for a female litigant applying for the grant of the administration of the
estate of this Court under succession certificates issued by the Court.
It has been held in the case Mrs. Jyoti S. Doshi Vs. M/s. Hindustan
Hosiery Mills, AIR 2000 Bombay 474, by Justice H.L. Gokhale, as he
then was, that the waiver of Court fees would be only to the extent of

the benefit the female litigants would be getting in the estate of the
deceased in matters of probate petition or succession certificate as
aforesaid. The aspect of the probate petition has been settled in the
judgment in the case of (Girish Kanaiyalal Munshi supra).
12. In the case of Shri Bipin Dalpatbhai Shah Vs. Vasantben
Rasilal Zaveri, 2001(4) ALL MR 1 Bombay, Justice J.A. Patel, as he
then was, held that property disputes with regard to matrimonial
matters required waiver/exemption of court fee by female litigants.
Monies payable to the legal heirs of the deceased husband on account
of his death for which a succession certificate would have been
applied for would be covered by the term “property disputes” and
would, therefore, fall within the purview of the notification for the
waiver of Court fee. That would also be only to the extent of benefit
received by such heir in the estate of the deceased. This is upon the
observation that the amounts required upon the death of the deceased
payable to the deceased were “really required for the maintenance of
the Petitioner as well as three children”.
13. In that case the deceased was an employed person. He
received benefits on his death. Those benefits were payable to his
heirs. The heirs were widow and three children. The widow was the
female litigant. She could, therefore, be given the benefit of
exemption because it was really required for her maintenance. It may
be mentioned that when an employee dies, the deathcumretiral
dues
would indeed to be used by his wife and children, as also his mother,
who are his heirs for their maintenance.
14. In this case it is not seen whether the deceased was an
employee. He has not received any deathcumretiral
dues. He has
made investments in certain companies by way of shares and

securities. It is those shares which are required to be transmitted to
his wife and his two married daughters. Ofcourse, counsel on behalf
of the Petitioner made it clear that the other two married daughters
are not required to be maintained from the estate of the deceased and
would pay court fees in respect of their shares. It is only the widow
who had applied for exemption with regard to only her 1/3rd share.
15. However, reading of the petition does not show that the
widow is otherwise unable to maintain herself. It is not only for the
petitioner to state that fact, but to also substantiate that fact. The
deceased is not shown to be an employee. The transmission of shares
and securities, therefore, would not be on par with “monies payable to
the legal heirs of her deceased husband on account of his death” as
they are not deathcumretiral
dues of an employee leaving behind the
widow and children.
16. Besides, there are no property disputes which the widow is
constrained to prosecute or defend before she gets the amount
receivable from the estate of her deceased.
17. In view of the aforesaid, this case is wholly distinguishable
from the case of Bipin Shah. Consequently merely because the
Petitioner is the widow or child of the deceased the Petitioner would
not be entitled to any remission, exemption or waiver of the Court fee
statutorily required to be payable U/s.379 of the ISA for securities or
other debts of the deceased.
18. The Petitioner shall, therefore, pay requisite Court fee after
which the Petition shall proceed.
( ROSHAN DALVI, J.)

Print Page

No comments:

Post a comment